928 F.

2d 61

55 Fair Empl.Prac.Cas. 486,

56 Empl. Prac. Dec. P 40,631
Richard Jeffrey SPAIN, Plaintiff-Appellant,
v.
William L. BALL, III, Secretary of the Navy; RAdm Donald E.
Shuler, Chief, Medical Service Corps, Defendants-Appellees.
No. 891, Docket 90-7818.

United States Court of Appeals,

Second Circuit.
Argued Jan. 18, 1991.
Decided March 12, 1991.

Appeal from a judgment of the United States District Court for the
Southern District of New York, Pierre N. Leval, Judge, dismissing
plaintiff's statutory and constitutional challenges to the United States
Navy's refusal to appoint him as a commissioned officer in the Medical
Service Corps, but granting him leave to replead part of his complaint.
The dismissal of the complaint is affirmed; the grant of leave to replead is
reversed.
Richard Jeffrey Spain, Ardsley, N.Y., plaintiff-appellant, pro se.
Claude M. Millman, Asst. U.S. Atty., New York City (Otto G. Obermaier,
U.S. Atty., Marla Alhadeff, Asst. U.S. Atty., New York City; Lt. Delora L.
Kennebrew, Department of Navy, Office of Judge Advocate General,
Alexandria, Va., of counsel), for defendants-appellees.
Before OAKES, Chief Judge, and CARDAMONE and MAHONEY,
Circuit Judges.
PER CURIAM:

Richard Jeffrey Spain appeals from a judgment of the United States District
Court for the Southern District of New York, Pierre N. Leval, Judge, dismissing

his statutory and constitutional challenges to the United States Navy's refusal to
appoint him as a commissioned officer in the Medical Service Corps, but
granting him leave to replead part of his complaint. For the reasons set forth
below, we affirm the dismissal of the complaint but reverse the grant of leave
to replead.
2

In the spring of 1989, Spain began the application process for a commission as
an officer in the Hospital Administration Section of the United States Navy
Medical Service Corps. At that time, he was 34 years old. Title 10 U.S.C. Sec.
532, the statute governing qualifications for appointment as a commissioned
officer, states in relevant part that commissions may be given only to persons
"able to complete 20 years of active commissioned service before [their] fiftyfifth birthday." Under this statute, then, no person over the age of 35 may
become a commissioned officer.

By July 6, 1989, Spain had not completed the application process, and it was
clear that he could not possibly obtain his commission prior to July 15, 1985,
his thirty-fifth birthday. Accordingly, his recruiter informed him that, pursuant
to section 532, his application would not be processed further.1 Spain then
brought this action in the district court, alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., the Age Discrimination
in Employment Act, 29 U.S.C. Sec. 621 et seq. ("ADEA"), and the equal
protection principles embodied in the Fifth Amendment.

1. Title VII Claim

4

In his complaint, Spain alleged that he was denied his commission because he
is a white male. Observing that the complaint did not allege facts supporting a
claim of race or gender discrimination, the district court dismissed Spain's Title
VII claim but granted him leave to replead.

We believe the Title VII claim should have been dismissed with prejudice. In
Roper v. Department of the Army, 832 F.2d 247 (2d Cir.1987), we held that
Title VII does not apply to uniformed members of the armed services. Accord
Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir.), cert. denied, 439 U.S.
986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). Here, Spain was applying for an
officer position with the Navy, a uniformed position. Accordingly, he cannot
allege any facts sufficient to support a Title VII claim against the Medical
Service Corps, and his claim should therefore have been dismissed with
prejudice.

2. ADEA Claim

Spain's next claim is that appellees' refusal to appoint him as a commissioned

officer constituted unlawful age discrimination in violation of the ADEA. We
agree with the district court that Spain's reliance on the ADEA is unfounded.
By its terms, the ADEA applies only to those individuals who are "at least 40
years of age." 29 U.S.C. Sec. 633a(a) (1988). Because Spain was only 35 when
the alleged discrimination occurred, his claim under the ADEA must fail.

Moreover, even if the ADEA applied to individuals under 40 years of age,

Spain's claim could properly have been dismissed under Roper, supra.
Although that case did not involve the ADEA, the same considerations that led
us to conclude that Title VII does not apply to uniformed members of the armed
services are applicable in the ADEA context as well. Accord Kawitt v. United
States, 842 F.2d 951, 953 (7th Cir.1988); Helm v. State of California, 722 F.2d
507, 509 (9th Cir.1983).

3. Equal Protection Claim

8

Spain's final claim is that 10 U.S.C. Sec. 532 violates the equal protection
principles embodied in the Fifth Amendment. Because Spain's equal protection
claim is based on a theory of age discrimination, the proper standard of review
is the rational basis test. See Massachusetts Bd. of Retirement v. Murgia, 427
U.S. 307, 312-14, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976). Under that
standard, section 532 passes muster. The statutory age limit for military
commissions reflects the military's desire to ensure "vigor and comparative
youth in positions of responsibility in the services." H.R.Rep. No. 640, 80th
Cong., 1st Sess. (1947), reprinted in 1947 U.S.Code Cong.Serv. 1644, 1649.
Although "vigor" does not always correlate with chronological age, "
[p]erfection in making [a statutory] classification[ ] is neither possible nor
necessary." Murgia, 427 U.S. at 314, 96 S.Ct. at 2567.

Accordingly, the dismissal of Spain's complaint is affirmed, and the judgment

modified only insofar as it granted Spain leave to replead his Title VII claim.

Spain alleges that his recruiter initially informed him that the maximum age for
obtaining a commission was 38, and that he relied on this information to his
detriment. Regardless of whether Spain's allegations are true, however, the
Government may not be estopped from asserting the statutory requirements for
maximum age without some showing of affirmative misconduct. See Schweiker
v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981)